| People v McMahon |
| 2017 NY Slip Op 03195 [149 AD3d 1102] |
| April 26, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John F. McMahon, Appellant. |
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Lauren Tan of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Cohen, J.),rendered August 25, 2015, convicting him of driving while intoxicated in violation of Vehicleand Traffic Law § 1192 (3), failure to stay in a designated lane, failure to stop at astop sign, and speeding, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (Braslow, J.), of that branch of the defendant's omnibus motionwhich was to suppress evidence of his refusal to submit to a chemical breath test.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court, after a pretrial hearing, properlydeclined to suppress evidence of his refusal to submit to a chemical breath test. There wassufficient evidence before the hearing court to support the conclusion that the defendant wasgiven clear and unequivocal warnings of the effect of his refusal, and that he persisted in hisrefusal to submit to the test (see Vehicle and Traffic Law § 1194 [2] [f]; People v Barger, 78 AD3d 1191[2010]; People v Tetrault, 53 AD3d558, 559 [2008]; People v Gangale, 249 AD2d 413 [1998]).
The defendant's contention that the County Court violated his rights under the ConfrontationClause of the Sixth Amendment to the United States Constitution is without merit. While theConfrontation Clause guarantees an opportunity for effective cross-examination, it does notguarantee a cross-examination "that is effective in whatever way, and to whatever extent, thedefense might wish" (Delaware v Fensterer, 474 US 15, 20 [1985]; see People v Burns, 6 NY3d 793,795 [2006]; People v Goodson, 35AD3d 760, 761 [2006]). It is within the discretion of the trial court to limit the scope ofcross-examination when questions are irrelevant, concern collateral issues, or risk misleading thejury (see Delaware v Van Arsdall, 475 US 673, 679 [1986]; People v Legere, 81 AD3d 746,750 [2011]). Here, the court's limitation of the defense cross-examination was a providentexercise of its discretion (see People v Pavao, 59 NY2d 282, 288-289 [1983]; Peoplev Sorge, 301 NY 198, 202 [1950]; People v Carey, 67 AD3d 925, 926 [2009]; People vGriffin, 194 AD2d 738, 739 [1993]; People v Rivers, 109 AD2d 758, 761[1985]).
The defendant's contention that the mandatory surcharges imposed at sentencing should bewaived is unpreserved for appellate review (see People v Ruz, 70 NY2d 942, 943 [1988];People v Norelius, 140 AD3d799, 799 [2016]; People vFrancis, 82 AD3d 1263, 1263 [2011]), and, in any event, without [*2]merit (see CPL 420.35 [2]; People v Jones, 26 NY3d 730, 732[2016]; People v Bones, 52 AD3d522, 523 [2008]; People vDomin, 13 AD3d 391, 392 [2004]; People v Owens, 10 AD3d 619 [2004]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Leventhal, Barros and Brathwaite Nelson, JJ., concur.